Full Text
HIGH COURT OF DELHI
JUDGMENT
NATIONAL INSURANCE CO. LTD ..... Appellant
Through: Mr. Arihant Jain and Mr. Shantha Devi Raman, Advs.
Through: Mr. Naresh Kumar, Adv. for R1(a) & R1(b)
1. This instant appeal is preferred by the appellant/Insurance Company in terms of Section 173 of the Motor Vehicles Act, 1988[1] assailing the impugned judgment-cum-award dated 24.05.2013 passed by the learned Presiding Officer – Motor Accident Claims Tribunal (South-01), Saket Courts, New Delhi[2] in MACT suit/case NO. 28/2012, whereby the learned Tribunal has awarded compensation to the claimants and fastened the liability upon the insurance company to pay the amount to the claimants.
FACTUAL BACKGROUND
2. Succinctly put, the injured Sh. Anil Kumar, aged 28 years on the fateful day dated 14.01.2008, met with an accident, when at about 12:05 PM, he was travelling in a car bearing registration No. DL-9CL- 1113, which was being driven by Manoj Yadav in a rash and negligent manner. When the car reached at NH-8 near D-Mark Hotel Flyover, the driver, in an attempt to overtake the truck, hit the car into the divider. As a result, the injured sustained grievous injuries and was removed to the hospital. Subsequently, FIR[3] No. 31/108 dated 14.01.2008 was registered under Section 279/337/338 of the Indian Penal Code, 18604 with PS Vasant Kunj, Delhi.
3. Upon service of notice of the petition, Manoj Yadav/respondent No.1 along with Parbhati Lal Yadav/respondent No.2, who are the driver[5] and registered owner[6] of the offending vehicle respectively and respondent No.3/insurance company appeared. It is pertinent to mention here that respondents No.1 and 2, despite giving several opportunities, did not file their written statements. Further, respondent No.3/insurer in its written statements only admitted the validity of the insurance policy.
4. The learned Tribunal, based on the pleadings, framed the following issues:
Tribunal
3 First Information Report IPC Section 2(9) “driver” includes, in relation to a motor vehicle which is drawn by another motor vehicle, the person who acts as a steersman of the drawn vehicle Section 2(30) “owner” means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement. National Insurance Company Ltd./respondent no.3? OPP
2. Whether petitioner is entitled to compensation? If, so, to what amount and against which of the respondents?
3. Relief.”
PROCEEDINGS BEFORE THE LEARNED TRIBUNAL AND IMPUGNED ORDER:
5. As regards issue No.1, the learned Tribunal held that the petitioner/injured has placed on the record the certified copy of the FIR, site plan, MLC[7] and other relevant documents, which are unrebutted, and thus, the respondent No.1/driver-Manoj Yadav was held guilty of rash and negligent driving, and the said issue was decided in favour of the injured. There is no challenge by the appellant insurance company to such findings.
6. During the course of proceedings before the learned Tribunal, the injured/Anil claimed that after the accident, he was taken to Safdarjung hospital where his MLC No. 6714/2008 (Ex.PW1/14) was prepared, wherein it is stated that he sustained grievous injuries including compound grade III C fracture shaft of left femur, subtrochanteric fracture, fracture shaft of left humerus with radial nerve palsy and fracture tibia. Further, he was operated and implants were inserted, open deduction, external fixation with debridement was done and close reduction B cast was applied on the left arm and also on the left leg. It was further stated by the injured that he was admitted to the hospital several times for his treatment. It would be expedient to reproduce the relevant observations in this regard, which read as follow: “5…….He sustained grievous injuries on his person including compound grade III C fracture shaft of femur left, fracture subtrocantic, fracture shaft of humerus left with radial nerve palsy and fracture tiba. He remained as Indoor patient since 14,1,2008 to 8.4.2008. He was operated and Implants were inserted, open deduction, external fixation with debridement was done. Close reduction B-cast applied on left arm, close reduction alongwith cast applied on left leg also. He further claimed that he was again admitted with Moda Nursing Home, Jhajjar, Rohtak and remained there from 31.11.2008 to 2.12.2008. He was operated and infected nail was removed and fresh implants were inserted, He further claimed that he took third round of admission with Pt.Bhagwat Dayal Sharma, Post Graduate Institute of Medical Sciences, Rohtak vide C.R,no.871215 and remained as inpatient from 28.07.2010 to 01.08.2010 with history of infected nonunion fracture shaft of femur with l/L nail. He was operated and infected implant was removed with curettage and rail rod fixator was applied under spinal anesthesia.”
7. The learned Tribunal accentuated the MLC dated 14.08.2008 (Ex.PW1/14), as also the discharge summary dated 08.04.2008 (Ex.PW1/29) and observed that the injured/petitioner was bedridden for a period of three months. The treatment of the injured continued at various hospitals and nursing homes in Rohtak and in this regard, several OPD documents and discharge slips were placed on the record, the last one dated 18.04.2012 (Ex.PW1/246), which showed that the claimant has been taking the treatment as late as April, 2012. Further, the learned Tribunal observed that as per the treatment record, the injured suffered a permanent disability @ 30%, and in particular 05% in the sense of temporary shortening of left lower limb by 1½ inch, non-union fracture of lower left leg, which have restricted his activities, such as squatting and climbing stairs. The germane observations have been reproduced hereunder:
7 Medico Legal Certificate “13. A combined reading of MLC dated 14.08,2008 - Ex.PWl/14 and discharge summary dated 08.04.2008 - Ex.PWl/29 of Safdarjung hospital leaves no doubt about the fact that petitioner was absolutely bedridden for three months. This much time was taken in curing his fracture in right arm, left leg and right lower limb. The discharge summary also contains notations about other procedure undergone and suffered by petitioner. The treatment of petitioner after discharge continues at various hospitals and nursing homes in Rohtak. In support of claim a number of OPD documents were placed on record. Another bout of admission in the hospital is supported by discharge card Ex.PWl/55 of Moda Nursing home, Rohtak showing period of hospitalization from 28.07.2010 to 01.08.2010. This document shows procedures done for removal of implants, curing of curettage and infection of nail, apart from other complications. There are other documents in the form of discharge summary again from PGIMS Rohtak – Ex.PWl/58 showing hospitalization from 20.9.2010 to 27.09.2010. The diagnose is again infected left leg and fixator of femur. There is another round of admission from 11.10.2011 to 15.10.2011 as per discharge card Ex.PWl/60 diagnosing infection resulting into inability to bear weight. After discharge, the number of follow slips have been produced on record and these have been exhibited by claimant. The last of which bears a date 18.4.2012 - Ex.PWl/246 which shows that claimant has been taking treatment as late as April 2012. In order to prove his case, the claimant placed on record certified copies of various documents from PGIMS Rohtak. The aforesaid treatment record shows that injuries were grievous in nature and claimant suffered a permanent disability which is calibrated by department of Orthopedics Pt. B.D.Sharma, PGIMS, Rohtak showing 30% of permanent disability, 05% temporary shortening of left lower limb by 1½ inch nonunion of lower left both born leg, moderate restriction of knee and ankle movement. It also makes mention of difficulty in squatting and climbing stairs.”
8. Further, although the claimant-injured claimed medical expenses, special diet and conveyance charges for more than Rs.5,00,000/, considering the nature of injuries and the repeated prolonged treatment undergone by the injured-claimant, the learned Tribunal granted a lump sum amount of Rs.3,50,000/- under medical and other expenses.
9. Further, the learned Tribunal dealt separately with „loss of income‟ and „loss of future income‟. As regards the former, the Tribunal was of the view that the petitioner was under treatment from 14.01.2008 to 15.10.2011, which must be followed by a six months rest period. It was observed that he was without work for more than four years. Although, the claimant alleged that he was in the business of cattle rearing and earning Rs.12,000/- per month, no documentary evidence has been placed on record with respect to the same. In the absence of such evidence, the learned Tribunal assessed the income based on minimum wages for a salaried skilled worker at the time of the accident i.e. 14.01.2008, which was Rs.3,682/- per month. The annual loss of income for four years was assessed at Rs.1,76,736/-. Similarly, considering that the injured would lose 50% of his income on account of 30% permanent disability, which would render him incapable of doing the business of cattle rearing in future, the loss of future income was assessed at Rs.3,75,564/-. Lastly, the learned Tribunal granted a total sum of Rs.10,22,300/- as compensation to the claimant. The relevant observations have been reproduced hereunder:
GROUNDS FOR APPEAL:
10. The impugned judgment-cum-award has been assailed by the appellant/insurance company primarily on the ground that the learned Tribunal has wrongly assessed the future loss of income at 50% despite the injured suffering only 30% disability. Further, it was contested that there is no evidence with respect to the income of the claimant and the assessment of minimum wages is wrong. Lastly, it was objected that the driver was indeed possessing two driving licenses, which is contrary to the provisions of the Act.
LEGAL SUBMISSIONS ADVANCED AT THE BAR
11. Learned counsel for the appellant/insurance company urged that although, the functional disability has to be assessed as per the vocation of the injured. There was no evidence brought on the record with regard to the educational qualification and/or any other tangible material proof that indicated that claimant/injured has been working as a cattle farmer. Further, placing reliance on Raj Kumar v. Ajay Kumar[8], learned counsel for the appellant/insurance company submitted that disability of one limb would not result in 50% disability of the whole body. Lastly, it was contested that there was no justification for awarding compensation in the nature of interest @ 9%. Per contra, learned counsel for the claimant/injured submitted that the Act is a welfare legislation and the injured has suffered 30% disability, rendering him seriously incapable to work as a cattle farmer to his full bodily potential in future and the learned Tribunal has rightly assessed the amount of compensation.
ANALYSIS AND DECSION:
12. I have given my thoughtful consideration to the submissions advanced by the learned counsels for the rival parties. I have also carefully perused the record including the digitized Trial Court Record of this matter.
13. First things first, the testimony of the injured/claimant that he was a cattle farmer was not challenged in his cross-examination. Although the claimant/injured testified that he was earning about Rs. 12,000/- per month, the learned Tribunal rightly discarded the said piece of evidence and instead, adopted a correct approach of reckoning minimum wages as applicable to a salaried skilled person at the time of accident in Delhi @ Rs. 3,682/- per month. The claimant/injured was 28 years of age and in a sound state of health at the time of accident and while the multiplier of „17‟ was rightly adopted, it is evident that the learned Tribunal had failed to consider the aspect of prospects in the increase of earnings of the deceased in future, which should be reckoned @ 40% for the claimant/injured being a self-employed person.
14. Therefore, finding no merit in the plea of learned counsel for the appellant/insurance company that no evidence was led as regards the vocation of the claimant/injured, loss of functional disability is assessed by reckoning the minimum wages @ Rs. 3,682/-, which is to be increased by 40% considering the increase in future prospects as per National Insurance Co. Ltd. v. Pranay Sethi[9], which comes to Rs. 1,472.80 Paisa. The total comes to Rs. 5,154.80 Paisa and the same is rounded off to Rs. 5,155/-. The learned Tribunal committed no error in law and facts in reckoning the functional disability or loss of earning capacity @ 50% of the whole body, and therefore, reckoning the annual income @ Rs. 61,860/- and considering 50% disability with respect to the whole body and applying the multiplier of „17‟ as per Sarla Verma v. DTC10, the compensation works out to be Rs.5,25,810/-. The learned Tribunal has rightly allowed the compensation in the nature of reimbursement of expenses towards medical treatment to the tune of Rs. 1,76,736/- and having regard to the prolonged medical treatment undergone by him, and it is also in evidence that the claimant injured would be requiring further medical treatment in future in the form of physiotherapy, removal of implants, follow up treatment etc. in the future as well, and thus, the award of Rs. 3,50,000/- as compensation towards future medical expenses cannot be said to be unconscionable.
15. Lastly, having regard to the young age of the claimant/injured, he is entitled to Rs. 1,25,000/- towards pain and suffering and an equal amount of Rs. 1,25,000/- towards loss of enjoyment of amenities of life. There is no gainsaying that this Court has suo motu powers to enhance the amount of compensation, wherever it is found that the same has not been awarded by the Tribunal in a just and fair manner, for which reliance can be placed on a decision in the case of National
Insurance Co. Ltd. v. M. Jayagandhi11 wherein, the Madras High Court observed that the appellate court can suo motu enhance the amount of compensation by exercising powers under Order XLI Rule 33 of the CPC12. The germane observations have been reproduced hereunder: “The question arising for consideration is whether in the absence of any Cross Objection, the Appellate Court could suo motu enhance the compensation. The Appellate Court exercising power under Order 41 Rule 33 CPC could enhance the quantum of compensation even without Cross-Objection. The Courts and Tribunals have a duty to weigh various factors and quantify the amount of compensation which should be just. Reference could be made to the decision of the Supreme Court in Sheikhupura Trans. Co. Ltd. v. Northern India Transporter's Ins. Co. Ltd., 1971 ACJ 206 (SC), wherein it is held that pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately, but must necessarily be an estimate or even partly a conjecture. The general principle is that the pecuniary loss can be ascertained only by balancing, on the one hand, the loss to the Claimants of future pecuniary benefits and on the other any pecuniary advantage which from what-ever sources come to them by reason of the death, i.e. the balance of loss and gain to a dependant by the death must be ascertained. The determination of the question of compensation depends on several imponderables. In the assessment of those imponderables, there is likely to be a margin of error. Broadly speaking, in the case of death, the basis of compensation is loss of pecuniary bene-fits to the dependants of the deceased which includes pecuniary loss, expenses, etc. and loss to estate. Object is to mitigate hardship that has been caused to the legal representatives due to sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be un-reasonable, excessive nor deficient. (paragraph 37) Of course, the Claimants who are widow, minor daughter and mother have not filed any Cross-Objection. Even without a Cross- Objection, questioning the quantum, the Court could Suo motu enhance compensation under Or. 41, R. 33, CPC.” (paragraph 38) {bold portions emphasized} 2008 SCC OnLine Mad 53 Civil Procedure Code, 1908
16. Accordingly, the compensation to the claimant/injured is worked out as under: - Sr. No. Heads of compensation Amount
1. Loss of future earning capacity Rs.5,25,810/-
2. Loss of income during treatment Rs.1,76,736/-
3. Towards future medical expenses, special diet and conveyance Rs.3,50,000/-
4. Towards Pain and suffering Rs.1,25,000/-
5. Towards Loss of enjoyment of amenities of life Rs.1,25,000/- Total Rs.13,02,546/-
17. Insofar as the compensation in the nature of interest is concerned, the claim petition has been decided within 15 months, and therefore, there is no justification for awarding the interest @ 9% per annum. This Court has already held in umpteen number of cases that ordinarily, the rate of interest should be 7.5%, for which reference can be invited to a decision of this Court in The Oriental Insurance Co. Ltd. v. Sohan Lal13.
18. Accordingly, the claimant/injured shall be entitled to a total compensation of Rs. 13,02,546/- (Rupees Thirteen Lacs Two Thousand Five Hundred Forty Six Only) with interest @ 7.5% per annum from the date of filing of the petition till realization.
RECOVERY RIGHTS:
19. As far as the issue of fake Driving License14 is concerned, the 2024 SCC OnLine Del 1966 Section 2(10) “driving licence” means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description. insurance company examined R3W1/Sushil Kumar, Licensing Clerk, RTO15, Mathura, who stated that the license possessed by Manoj Yadav was fake and no such licence was issued by the authority. It is pertinent to mention here that another driving license was produced and after verification from the concerned Transport Authority, Janakpuri, New Delhi, the same was found to be genuine. The learned Tribunal was of the view that the owner provided a genuine license and the insurance company is redundantly pressing upon the fact that the driver was possessing two driving licenses at the same time and which is in contravention of the Act. Holding this view, the learned Tribunal held both respondents No.1 and 2 (driver and owner) as join tort-feasors, jointly and severally liable to pay the compensation and held that the insurance company is liable to indemnify the owner. It would be expedient to reproduce the relevant observations in this regard: “29. It is clear that only above mentioned defences are permitted to insurance company. It has nowhere stated that if the driver committed a breach of possessing two driving licences such kind of defence would be available to insurance company. If such interpretation is accepted then the claim of any genuine claimant would be defeated by merely placing on record in genuine/fake driving licence. At the most, the insurance company can bring about the proceeding against offending driver for possessing a fake driving licence. Even otherwise, there is nothing on record that owner-insured had knowledge that the licence possessed by the driver was fake or invalid. The insurer/respondent no.3 cannot escape its liability to pay compensation. Here in this case R[1] is the driver and R[2] is the owner. The injured has sustained injuries on account of negligence of Rl. Therefore R[1] and R[2] are joint tort feasors and jointly and severally liable to pay compensation. R[3] is insurer of R[2], therefore, R[3] is liable to indemnify R[2] regarding
20. Without further ado, the appellant/insurance company is not entitled to recovery rights against the respondent No.2/driver and the registered owner as evidently, the driver of the offending vehicle was having a valid and effective driving license at the time of accident.
21. In view of the foregoing discussion, the present appeal filed by the appellant/insurance company is dismissed. However, the amount of compensation awarded to the claimant/injured is suo motu enhanced and the claimant/injured shall be entitled to a total compensation of Rs. 13,02,546/- with interest @ 7.5% from the date of filing of the petition till realization.
22. Before parting with this appeal, it may be indicated that the operation of the impugned judgment-cum-award had been stayed by this Court vide order dated 22.07.2013 subject to the appellant/ insurance company depositing the entire awarded amount of compensation with upto date interest accrued thereupon with the of the amount of award was ordered to be released to the claimant/ injured. Hence, it is directed that the remaining amount deposited with the Registrar General be released to the claimant/injured forthwith with accrued interest. Further, the amount of compensation as enhanced by this Court, with interest, be deposited with the learned Tribunal within four weeks from today, failing which, the appellant/insurance company shall be liable to pay the same with penal interest @ 9% per annum.
23. The amount of statutory deposit of Rs. 25,000/- deposited by the appellant/insurance company is hereby forfeited to the State.
24. The present appeal along with the pending application stands disposed of.
DHARMESH SHARMA, J. MAY 02, 2024